The Theory of Social Revolutions

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It follows that it must be conservative, for itsmembers should long have passed that period of youth when the mind issensitive to new impressions. Were it otherwise, law would cease to becohesive. A legislature is nearly the antithesis of a court. It isdesigned to reflect the passions of the voters, and the majority ofvoters are apt to be young. Hence in periods of change, when aloneserious clashes between legislatures and courts are likely to occur, asthe social equilibrium shifts the legislat...ure almost certainly willreflect the rising, the court the sinking power. I take the Dred ScottCase as an illustration. In 1857 the slaveholding interest had passedthe zenith of high fortune, and was hastening toward its decline. In theelections of 1858 the Democratic party, which represented slavery, wasdefeated. But the Supreme Court had been organized by Democrats who hadbeen dominant for many years, and it adhered, on the principle laid downby Jeffreys, to the master which created it.
Occasionally, it is true, a court has been constructed by a risingenergy, as was the Supreme Court in 1789, but then it is equallytenacious to the instinct which created it.


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